Ontario Sheet Metal Workers Conference v. E. S. Fox Ltd., 1986 CanLII 1596

Ontario Labour Relations Board

[1986] OLRB Rep. April 438

3483-84-M Ontario Sheet Metal Workers Conference, Sheet Metal Workers' International Association, Local 269, Applicants, v. E. S. Fox Ltd., Ontario Sheet Metal and Airhandling Group, Respondents

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. P. Wilson and H. Kobryn.

APPEARANCES: Bernard Fishbein, Leo Lavallee and George Ward for the applicants; W. J. McNaughton and M. Brousseau for the respondent E. S. Fox Ltd.; no one for Ontario Sheet Metal and Airhandling Group.

DECISION OF THE BOARD; April 30, 1986

Decision of the Board

1. This is a grievance referred to the Board pursuant to the provisions of section 124 of the Labour Relations Act. It concerns the respective responsibilities of the parties when a construction employee with a prior history of back problems is referred to an employer through the hiring hall.

2. The grievor, Mr. Fred VanLingen, had previously worked for the respondent sheet metal contractor in 1982. In December of 1982, the grievor was working in the respondent's shop in Kingston, when he slipped on a piece of pipe and hurt his back. That injury kept the grievor off work and on Workers' Compensation benefits until March of 1983. At that point the grievor attempted to resume his duties in the respondent's shop, but after 3 weeks had to go back on Workers' Compensation.

3. The grievor did not make a further attempt at resuming work until December of 1983. At that point he was seen by a Workers' Compensation Board doctor, and advised that he would likely be fit to resume normal duties in another three months. In the meantime, he was advised to attempt modified employment, if such were available. The only notification to the company, however, came in a letter from the Workers' Compensation Board dated February 21, 1984. That letter made no mention of a prognosis for resuming normal employment, but rather stated only the following:

E 5 Fox Limited Date: 21FEB84 209 Dalton Ave Kingston Accident Date: 20DEC82 Ontario K7K 6C2 Injury: Not known

Dear Sir or Madam;

Claim No: C 14078847 Vanlingen Fred

Your Reference No: 3037

Medical information shows that your worker is no longer totally disabled because of the compensable condition. We consider that this employee is capable of performing modified employment as of 13FEB84. If suitable employment is not available, the Workers' Compensation Act provides that an injured employee shall receive the equivalent of full disability benefits while partially disabled. For your information and convenience, the provisions of Section 41 of the Act are printed on the reverse.

We have asked the worker to discuss the type of work which is required with the attending doctor and also to determine from you if it is available. We have emphasized that the continuation of benefits depends upon the worker's co-operation and availability.

Any assistance which you can provide in bringing about an early return to work will be appreciated.

Yours very truly,

"M. MacLean"

M. Maclean

Telephone: (416) 963-0804

When writing the Board be sure to quote Claim No. C 14078847

(emphasis added)

The grievor did not resume any form of work with the respondent at that time, but rather in March began working off and on for another sheet metal contractor in the area, Andreynolds. From June of 1984 that employment became continuous, on a shopping-mall project, and the grievor's Workers' Compensation claim was finalled. From that point on the grievor no longer appeared on the respondent's monthly Workers' Compensation cost statement.

4. The grievor's job with Andreynolds ended in December of 1984, and he went on the Local's out-of-work list. When the respondent subsequently put in a request for sheet metal workers for a Proctor & Gamble job in Belleville on February 26, 1985, the grievor was Number 1 on the Belleville list. Mr. Lavallee, the applicant's business agent, advised the respondent's foreman, Reg Smith, of the names of the men that he would be referring. It is not clear how many men were being referred at that time, but in any event, the grievor' s name was among them.

5. The respondent at this point had just commenced a program to monitor and attempt to control its Workers' Compensation costs, and one aspect of that program was for all field staff to make an effort to find "light duties" for employees who required them. Mr. Smith was aware of the grievor's prior back problem, and telephoned Head Office in Welland for instructions. A company vice-president, Mr. Bernard Royal, consulted the company's file on the grievor, and advised Mr. Smith that he was "in no way" to allow the grievor to commence working on the Proctor & Gamble job site. The company's evidence is that this was a heavy industrial job, involving both the removal and installation of a ventilation system, and that in terms of lifting, bending and twisting, it was more strenuous than, say, a commercial job like a shopping mall. The applicant's witnesses testified that this was not necessarily the case. However, it is clear that the work available to be done on the Proctor & Gamble job site could in no way be described as "modified" work.

6. Following his telephone conversation with Mr. Royal, Mr. Smith called Mr. Lavallee to advise him that the grievor would not be permitted on the job because of his back. Mr. Lavallee pointed out that the grievor had been working on construction for 6 months without a problem. Mr. Smith asked Mr. Lavallee if the union was prepared to underwrite the Workers' Compensation costs if the grievor injured himself on the job and never worked again, and Mr. Lavallee indicated that he was not.

7. When the grievor himself reported for work that morning, he was advised by Mr. Smith that he could not go on the job. Mr. Smith explained that because of his back injury, the work on the Proctor & Gamble job presented a hazard to him. Mr. Smith was not himself aware of the February 1984 letter that the company had, and made no mention of it. The grievor responded that he had a doctor's clearance, and that he had worked on the Quinte Mall for Andreynolds for 6 months with no problems. Mr. Smith stated that he had himself taken a course on back injuries, and that they never really clear up completely. He then added that the company could find a job for him in the shop in Kingston that would not be a hazard for him. To that the grievor responded that he was Number 1 on the list for Belleville, and did not feel that he had to drive an extra 2 hours a day to Kingston. He added that that drive would be harder on his back than anything else would, and also that the other men in the shop did not always help with the lifting. Mr. Smith said that he was sorry, but those were his instructions. The grievor testified that no elaboration was given as to what would be expected of him in the shop, and he did not ask.

8. On March 5th the respondent made a further request for men, and the union sent the grievor and Al Hale to the job. When Mr. Slnith saw the grievor re-appear, he simply told him that nothing had changed, and that he was not going on the job. Mr. Hale commented that the grievor had worked under him at the Quinte Mall for 6 months, and had had no difficulty. He warned Mr. Smith that there would be trouble over this.

9. On April 5th the respondent again needed men, and again the grievor was sent. This time he was greeted by the respondent's Kingston area Sheet Metal Manager, Maurice Brousseau, Mr. Brousseau having by that time returned from vacation. In contrast to the earlier conversation of Mr. Smith, who was simply carrying out instructions, Mr. Brousseau had in his possession the company's last letter from the Workers' Compensation Board, of February 21, 1984. Mr. Brousseau showed the letter to the grievor, and referred him to the phone number and name at the bottom of it. Mr. Brousseau suggested that the grievor contact the Workers' Compensation Board, and that if he was all right and off modified work, an indication to that effect ought to be forthcoming. Mr. Brousseau made it clear, in other words, both to the grievor and in his evidence before the Board, that as soon as he had unqualified medical clearance, he could go to work on the Proctor & Gamble job.

10. With this information both the grievor and the union took steps to satisfy the company's condition. They immediately contacted the Kingston branch of the Workers' Compensation Board, and requested confirmation of the grievor's present status. They also requested that the reply be in a form that could be taken to the job site and used for any employer. That reply read:

April 12, 1985

C 14078847T

When writing the Board please quote the above file number

TO WHOM IT MAY CONCERN:

This will confirm that upon review of the claims file Number C14078847T for Mr. Fred VanLingen, it is evident that Mr. VanLingen was capable of returning to his regular job as a sheet metal worker without any limitations imposed upon him by his compensable disability, effective June 18, 1984.

Temporary Total Compensation Benefits to this worker were finalized June 18. 1984 accordingly.

"J. Vance"

Jim Vance, Co-ordinator

Kingston Information Service Office.

This letter was immediately given to the respondent. The respondent, however, was not impressed by the "To whom it may concern" designation, and also read the letter as simply attempting to draw conclusions on the basis of the record of benefits. The company therefore decided on July 9th to seek further clarification and confirmation of the grievor's medical condition from the Board's Head Office, where employees' full files are kept. There is no explanation before the Board as to why the company waited until July 9th to make that request. In any event, the company received the following reply from the Board's Head Office, which it still considered to be ambiguous and unsatisfactory:

July 26, 1985

ES. Fox Limited

209 Dalton Avenue

Kingston, Ontario

K7K 6C2

Attention: Charles E. Turner, Manager, Eastern Ontario

Dear Mr. Turner:

Claim C 14078847 - VANLINGEN, Fred

The above mentioned worker, after it was found that he was fit for modified work, was placed with the Vocational Rehabilitation Division to assist him in seeking suitable modified employment. Mr. Vanlingen has been employed since June 18, 1984. No further benefits have been paid since that date.

I trust this information is satisfactory.

Yours very truly,

"G. Golz"

G. Golz (Ms.)

Claims Adjudicator

Claims Adjudication Branch.

It is our understanding from the parties' comments, however, that the assignment of the grievor to the job in question had by this time ceased to be an issue.

11. What were the respective rights of the parties in the above factual situation? For guidance, both parties referred the Board to its relatively recent decision in Ontario Hydro, reported [1983] OLRB Rep. Jan. 99. There the Board had to decide whether an employer, faced with the typical hiring-hall provisions of a construction industry collective agreement, retained the right to decline to employ an individual alleged to have an affiliation with the terrorist wing of the Irish Republican Army. The relevant provisions in that collective agreement provided:

SECTION 7 EMPLOYMENT PRACTICES/HIRING

701 Hiring and Layoff

A. The employment and layoff of tradesmen and apprentices, excluding key tradesmen, shall be carried out on the following basis and sequence:

(i) The Employer agrees to hire and employ only members of the International Brotherhood of Electrical Workers on all electrical work. The EPSCA office will request the appropriate Local Union office for certified tradesmen and apprentices required and no one will be employed unless they are in possession of a clearance card from the Local Union office.

(ii) If the Local Union is unable to furnish certified Local Union or travel card members to the Employer within three (3) working days of the time the Local Union office receives the request for tradesmen (excepting Saturdays, Sundays and Holidays), the Employer shall be afforded the right to employ certified tradesmen (travel card members or permit holders) as are available. The Local Union will issue clearance cards to tradesmen hired in these circumstances. All employees shall register with the EPSCA office prior to commencing work. Travel card members may be replaced by Local Union members and permit holders may be replaced by Local Union members or travel card members who maintain a regular residence in the geographic area of the project after three (3) working days' notice to the Employer, but in no case until a tradesman has worked a minimum of one week.

B. In all cases of layoff, except as noted in the Local Union 1788 Appendix, the Employer shall layoff its employees in the following sequence:

(i) permit holders;

(ii) travel card members;

(iii) Local Union Members.

C. When possible, the Employer shall noti1~ the Local Union Office three (3) days prior to layoff.

After reviewing a number of the cases, the Board set out its approach as follows:

32. The other approach, and the one we prefer, is to recognize that this collective agreement was negotiated in the context of the construction industry and that the words of the collective agreement in issue pertain to one of the hallmarks of the construction industry, the hiring hall. The nature of a hiring ball is to a large degree a function of two labour relations realities in the construction industry. The first is the fact that this collective agreement and others in the construction industry generally pertain to "certified tradesmen or journeymen". The word "journeymen" is said to have originated in the railroad industry where a journeyman was considered a totally competent craftsman who could take his tools and apprentice and travel to remote parts of a railroad to perform his work as a skilled craftsman essentially on an unsupervised basis. A "journeyman" or "tradesman" need not be described as a "skilled journeyman" or "skilled tradesman" because the word journeyman or tradesman already denotes the highest level of skill in a trade. In short, the term journeyman or tradesman refers to a person who can work with little or no supervision and who represents the highest level of proficiency in a craft. See Swinerton and Walberg Company (1977), 68 L.A.C. 940 (Schedler). The notion of "certification" pursuant to legislation requiring the training and certification of tradesmen is today a further guarantee of proficiency. Thus persons who constitute certified tradesmen or journeymen and who are referred to an employer by way of a hiring hall provision cannot be considered untested and untried potential hires "from the street" as in a manufacturing or service context. Because journeymen and tradesmen are expected to have a minimum level of proficiency, an inference that the employer has agreed to fetter its hiring discretion, or subject it to arbitral review, is not prima facie an unreasonable conclusion.

33. The second point giving rise to the nature of a hiring hall is the peculiar relationship between employer and employees in the construction industry as was discussed in the case of R.M. Hardy and Associates Limited and Teamsters, Local Union 213, (1977] 2 Can. L.R.B.R. 357 where the chairman, Professor P. C. Weiler, observed the following:

Most of the workmen in the construction industry are skilled tradesmen, usually having obtained tradesmen's qualification certificates after years of apprenticeship. Each of the distinctive trades has its own craft union, which may have a century-old tradition of representing its members in collective bargaining with the contractors who employ members of that trade. But most building trade unions have another role besides the customary representation of employees in collective bargaining: the hiring hall function. The reason is the highly cyclical nature of employment in the construction industry -stemming both from the rhythm of individual projects and the intermittent and erratic pattern in which major construction investments are brought on stream. In response to that pattern, contractors - whether general or specialty contractors - normally do not maintain a regular work force. They may retain a nucleus of key employees, but the bulk of their workmen are recruited as and when they are needed for a specific project for which the employer has obtained a contract. Where do they get these tradesmen? Through the union which represents that craft. The union office keeps a list of available tradesmen; the contractor phones the union office for certain kinds and numbers of workmen; and the crew is then dispatched through the union hiring hall to the job site. In effect, the trade union performs the basic personnel function in the construction industry, by allocating jobs among the members of the work force. Any one tradesman may be employed by a number of contractors in a number of areas in any one year. Besides paying the immediate take-home wages to the tradesmen on the job, the contractor also forwards directly to the union hourly contributions for health and welfare, vacation, and pension benefits, and these funds are administered by the union for its members. And the consequence is that the primary and enduring relationship in construction is between craft unions and tradesmen-members, not between employer and employee.

(our emphasis)

And then, on the basis as well of the reasonable inferences to be drawn from the language of the collective agreement before it, the Board concluded at the end of paragraph 35:

... on the wording of this collective agreement and construing it in light of construction industry practices, we have come to the conclusion that the employer docs not have an unbridled right of rejection in dealing with certified tradesmen referred to it pursuant to section 701. It has given up the broad discretion it might otherwise have had in agreeing to this particular hiring hall provision.

The Board went on in paragraph 36 to note, however:

... But must all other tradesmen referred be hired? What if a referred tradesman is intoxicated or from past experience believed to be unreliable or incompetent notwithstanding his certification? Were we to hold such an obligation existed, the employer would be required to employ the individual first and then immediately terminate on the basis of the documentation it had before it. Reading the collective agreement as a whole, it is our opinion that in agreeing to Section 701 the parties did not intend such a result. The requirements of section 701 and the acknowledgement of the parties in section 7, paragraph C that reliable and competent union members will be referred and employed are best met by implying a right in the employer to reject persons it believes to be unreliable or incompetent or otherwise unqualified subject to acting reasonably, in good faith and without discrimination. We point out that Section 1301 makes clear that "an employee" who has been discharged or otherwise disciplined for cause may take advantage of the "just cause" standard required by that section. On the facts before us, the grievor, Mr. Gilroy, was a tradesman referred for employment but actual employment was not forthcoming. While the parties did not specifically agree to an unbridled right in the employer to reject, they also did not agree to subject rejections to the section 1300 standard of "just cause". Rather, the act of hiring under this construction industry agreement is very similar to the act of promotion in an industrial context. With respect to the latter function, and in order that seniority rights not be capable of unilateral abrogation by an employer, arbitrators have inferred the contractual obligation that management's responsibility to assess employee qualifications be exercised reasonably, in good faith and without discrimination.

12. In the present case, the relevant provisions read:

ARTICLE 6 - MANAGEMENT'S RIGHTS

6.1 The Union agrees that the employer has the exclusive right to manage the enterprise and to exercise such right without any restrictions save and except as are set out in this Agreement. Without restricting the generality of the foregoing it is agreed that it is the exclusive function of the employer:

• to hire, transfer, assign work, promote, demote, lay-off, discipline and discharge employees for just cause, and to increase or decrease the working force from time to time.

• to determine materials, parts, components and assemblies to be used, design of products, facilities and equipment required, to prescribe tools, methods of performing work and the location of equipment, and the scheduling of work.

6.2 The management rights expressed herein shall riot be exercised in a manner inconsistent

with the provisions of this Agreement.

ARTICLE 21 - HIRING PROCEDURE

Refer to Clause 7 of Local Appendices

21.1 The Union hereby agrees to furnish at all times to the employer, duly qualified members and registered apprentices as the work requires, in such numbers as the employer shall determine to be necessary to properly execute the work he has contracted for, in the manner and under the conditions specified in this Agreement.

21.2 Whenever after reasonable notice, (48 hours) excluding Saturdays, Sundays and Holidays, the local union is unable to furnish a sufficient number of such duly qualified members and registered apprentices recognized by the Union, to meet the requirements of the employer, then the employer may secure such additional sheet metal workers from other sources as may be necessary, it being understood that they shall be eligible and shall comply with the requirements of the Union and thus become covered by the terms of this Agreement.

21.3 The Union agrees that where members of a local union other than the local having territorial jurisdiction for the area and who are hired in the area in which the work is being performed, are working on a project that does not require more than five working days to complete, such sheet metal workers shall be allowed to finish the job without interruption from the local union. However if such sheet metal workers are on a job which will exceed five working days to finish they may be replaced by members of the local union having territorial jurisdiction where the work is being performed, at the earliest possible convenience.

21.4 Notwithstanding the above, any two duly qualified members sent by an employer to work on a project in the territorial jurisdiction of another local union shall be permitted to work without interference from any local union, for such period as the employer may require them to do so providing they comply with the terms and provisions of the local union to whose area they are reporting.

21.5 When an employee first reports to work with an employer, he shall give to the employer or his representative, the following documents:

• Social Insurance Number

• Journeymen must show proof of Ontario Certificate when required

• Apprentices shall prove certification of status and completed hours

• Referral slip

• OHIP form 104 (Where applicable)

• Union Check-off (Dues Deductions) Authorization Form (where applicable).

21.6 The Union agrees to supply journeymen sheet metal workers and/or apprentices only to

employers who are covered by this Agreement.

ARTICLE 22 - DISCHARGE OR QUIT

22.1 When an employee is discharged for just cause or quits his employ of his own accord, he shall receive his wages and all other monies owing him. Together with his record of employment on the next regular pay following his termination.

And Clause 7 of the Local Appendix reads:

CLAUSE 7 - HIRING PROCEDURE

Refer to Article 21 Body of Agreement

7.1 The employer shall have the right to engage former employees in the past one year, if available, but otherwise he will accept journeymen or apprentices sent by the local union business manager.

13. Contrary to the position noted in the Ontario Hydro case, this collective agreement does contain in its Management's Rights clause, the explicit right to hire. On the other hand, under Article 21, the understanding is that the Union will "furnish" such "duly qualified members and registered apprentices as the work requires", and it is only if it is unable to do so within 48 hours that the employer may secure "such additional sheet metal workers from other sources as may be necessary". But as in the Ontario Hydro case, common sense suggests that the "qualified" members furnished by the Union will be fit to perform the work required, and we do not read even the language of Clause 7 of the Local Appendix as an express override in that regard. What Clause 7 specifically deals with is a limited right of the employer to "name-hire", and it would go against our collective experience to conclude that the language employed in that clause was intended by the parties to address any other significant issue. (We also note, as Mr. Fishbein concedes, that even if we were to find otherwise and allow a notional hiring, the union would still have to face the test of 'just cause' for termination under the agreement.)

14. The test remains, therefore, the one articulated by the Ontario Hydro case. And we also accept the recognition in the Hydro case that there is, in a construction hiring-hall situation, something akin to employment status even prior to the hiring. As the Board put it in Ontario Hydro, at the end of paragraph 34:

... whatever the legal significance of section 69, the court cases do suggest that in the construction industry and in like industries, there is in law, and without specific contractual wording to the contrary, a very close relationship between being in a hiring ball and having employment status. Precisely how close will depend on the circumstances of any particular case.

Similarly, we find the Hydro case's analogy with seniority rights apt:

37. Because a hiring hall provides the same "job security" in the construction industry as seniority does in a non-construction context, the two institutions are equally important and deserving of the same construction and interpretation by arbitrators. An unbridled management discretion to hire in the face of a hiring hall clause such as exists in this contract would be as undermining of that provision as would be an unbridled power to review qualifications to seniority rights in the unusual industrial collective agreement. On the other hand, full arbitral review as in discipline cases would not accord with Article 13 and be subject to the concern of excessive arbitral intervention. Accordingly, the approach outlined in Reynolds Aluminum is equally applicable to the response of employers to hiring hall referrals without specific wording to the contrary.

Indeed, contrary to the submissions and cases of the applicant, we see no valid reason why the situation that has arisen here in the construction industry ought not to be treated in a manner analogous to the return to work of an injured employee in the normal industrial setting: the interests to be protected from both the employer and employee side appear to be the same. And the notion of a construction employee having to show up at various job sites with a clearance certificate in his pocket does not strike us as particularly unrealistic: that is exactly what the grievor and the union had in mind when they requested the "To Whom It May Concern" letter from the Workers' Compensation Board. The only real difference, it seems to us, in the construction industry, is that in most cases the requisitioning employer will not know of the prospective employee's injury record, and the issue simply will not arise. In addition, the Board must also give thought to the fact that the employment opportunity in construction may be short-lived in itself, in considering upon whom the onus may lie to deal with this problem in an expeditious manner.

15. In the normal employment setting, the right and the duty of an employer to require an employee to provide medical clearance prior to returning from (as here) a lengthy and serious injury, is well established. As it was put, for example, in the Firestone Tire & Rubber Co. case, (1973) 1973 CanLII 2103 (ON LA), 3 L.A.C. (2d) 12 (Weatherill), at page 13:

There is no doubt that an employer has both the entitlement and the obligation to satisfy itself as to the fitness of its employees to carry out the tasks to which they will be assigned. What is proper will depend, in each case, on the nature of the work and the circumstances to which it is to be performed. In Re U.A. W., Local 525, and Studebaker-Packard of Canada Ltd. (1960), 11 L.A.C. 139 (Cross), it was held that it was a paramount right of management to require that employees be physically fit to perform the work that they are required to do and to satisfy itself by medical opinion if necessary, that this is so. In Re U.A. W., Local 89, and Reflex Corp. of Canada Ltd. (Weatherill), referred to in Re U.A. W, Local 27, and Eaton Automotive Canada Ltd. (1969), 1969 CanLII 1478 (ON LA), 20 LAC. 218 at p. 220 (Palmer), the Studebaker case was approved and it was added that there must be reasonable and probable grounds for the imposition of such a requirement. In the Reflex case, it was said:

Clearly, where an employee returns from an absence due to illness, the occasion is proper for the company to require some certification of fitness. Where the certificate is not satisfactory, the company could properly require a further certificate, or could direct its own medical examination.

The passage quoted went on to note, however:

Such a procedure, however, must be carried out in accordance with ordinary principles of fairness. If, as in the instant case, the company is to reject the medical certificate offered by the returning employee, it must state the grounds for such objection, and must point out to the employee what it requires before it will permit his return. If the certificate in itself is not satisfactory, the employee must be advised of that, so that he may either protest the reasonableness of the company's rejection of it, or request a more ample certificate from his doctor. If a further medical opinion is required, then again the company must advise the employee of that fact.

16. How do the facts in the present case measure up to the foregoing tests? Did the company, first of all, have reasonable grounds to be concerned about the medical condition of the grievor when he sought to be employed on the Proctor & Gamble job?

17. We find that it did. The last authoritative evidence it had of the grievor's medical condition was the letter from the Workers' Compensation Board of February 21, 1984, and that letter gave no hint that the grievor was fit for anything but modified work. The fact that the grievor was known to have gone off Workers' Compensation benefits in June of that year tells the company nothing more: the grievor would come off benefits once regularly employed even if it was in fact only modified or light work that he had found. The passage of time in a given case is obviously of some relevance, as are the statements to the company by the grievor and Mr. Hale that the grievor had been doing construction work with no problem. But the question is essentially a medical one, and the company still would have no firsthand knowledge of the demands that the other employment would have made on the grievor's back. The grievor had been on Workers' Compensation benefits up to June of 1984, had tried to come back to work unsuccessfully once before that, and in all had, to the company s knowledge, suffered a serious enough injury to have kept him off work for a period of 15 to 18 months. In all the circumstances, we do not find the company's requirement for some form of medical clearance for unrestricted work, within a period of eight months from the time the grievor's Workers' Compensation Board claim was finalled, and in light of the restrictions placed upon the grievor in the last correspondence the employer had had from the Workers' Compensation Board, to have been arbitrary, discriminatory or unreasonable. (We are assuming, from Mr. Brousseau's evidence, that that was the company's concern at that time. Mr. Royal did not testify, and we would note that any denial of the grievor's employment rights simply because he had previously had a compensable injury, would be a violation of the Ontario Human Rights Code, as amended by the Workers' Compensation Amendment Act, 1984 (No. 2), 1984 S.O. c. 58.)

18. That brings us to the comments of the board of arbitration in the Firestone case, about procedural fairness. Particularly, as we noted, with the fluid job situation in the construction industry, one can expect both parties in a situation of this type to act in concert, and to share whatever information they have, in an effort to obtain satisfactory medical clearance, either through the Workers' Compensation Board or independently, in as expeditious a manner as possible. Through no fault of his own, the communications by Mr. Smith to the grievor on February 26th and March 5th fall short in this regard. The only comment made to the grievor was that he had "had a back injury": the February 1984 letter was not known to Mr. Smith, and he did not alert the grievor to the existence of that problem. All the grievor knew is that he had been discharged by the Workers' Compensation Board, had tested his back, and had found it fine. We are, however, of the view that the company's offer of modified work in the shop, where the grievor had himself previously taken employment, ought to have been accepted and at least attempted by the grievor, while his status was being clarified, and in declining to do so, the grievor failed to make reasonable efforts to mitigate his damages. No damages would be payable in any event, therefore, for the limited period between the first and third referral.

19. The communication by the company on the first two referrals stands in marked contrast to that from Mr. Brousseau pinpointing the problem on the third referral of April 2nd, after which the grievor and the union did take steps immediately to attempt to clear the record. But that record is still a medical one. The letter from the Workers' Compensation Board's branch office does, we would agree, appear to reflect no more than a history of when benefits were payable. The company was therefore entitled to seek further clarification, in light of the letter that it had received in February of 1984. But if that is what the company required, there was an onus on it at that stage to act expeditiously, (assuming that the matter was still a live issue). To say nothing to the grievor or the union, and to make its own follow-up inquiry only on July 9th, does not meet that onus. We do not think that the grievor could be expected to have continued to drive to the Kingston shop indefinitely while the company unreasonably dragged its feet, and if liability for the Proctor & Gamble job is still an issue beyond the time that the company was in receipt of the letter submitted by the grievor on April 12, 1985, the Board is prepared to assess the value of that liability, should the parties be unable to agree.

20. The grievance is otherwise dismissed.